Chattisgarh High Court
Hemant Jatwar vs The State Of Chhattisgarh on 5 March, 2025
1
2025:CGHC:10939
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1628 of 2022
1. Hemant Jatwar S/o Gopal Jatwar Aged About 33 Years R/o Village
Pihrid, Thana Malkharoda, Distt. Janjgir Champa, Chhattisgarh
... Appellant
versus
1. The State Of Chhattisgarh Though Police Station Malkharoda, Distt.
Janjgir Champa, Chhattisgarh
... Respondent
For Appellant : Mr. Rahil Arun Kochar, Advocate
For Respondent : Mr. Amit Verma, Panel Lawyer.
SB: Hon'ble Mr. Ramesh Sinha, Chief Justice
Judgment on Board
05/03/2025
1. I.A. No.3/2023, an application for urgent hearing, is allowed and with
the consent of the parties, this appeal is being heard finally.
2. This criminal appeal has been filed by appellant against the judgment
of conviction and order of sentence dated 29.9.2022 passed in S.T.
No.57/2021 by which by learned Additional Sessions Judge (FTSC)
Sakti has convicted the appellant under Section 376(1) of Indian Penal
Code (for short 'IPC') and sentenced him to undergo 10 years rigorous
imprisonment with fine of Rs.1,000/-, plus default stipulation
NISHA by
DUBEY
3. The prosecution case, in brief, is that the victim lodged written report in
DUBEY Date:
2025.03.07
16:46:56 +0530
Police Station Malkharoda to the effect that on 11.9.2020 at 8:30 a.m.
she had come to Mission Chowk, where appellant came to her, insisted
her to accompany him on his vehicle and upon her refusal, he caught
hold of her hand, forcibly sat her on the vehicle and took her to a lonely
house situated in village Chaarpara where he committed forcible sexual
intercourse with her. Thereafter, accused dropped her at Mission
Chowk on his motorcycle and then she went to home from bicycle and
upon return of her parents from field, she narrated the entire incident to
them, then report was lodged.
4. On the basis of the complaint made by the victim, the police registered
the offence under Section 376 of IPC. Victim was sent for medical
examination. Statement of the witnesses were recorded. Spot map was
prepared. Appellant was got medically examined, he was found
competent to have sexual intercourse and he was arrested. Seized
articles were sent for FSL report from where report Ex.P-26 was
received. After completion of investigation, charge-sheet against the
appellant under the aforesaid section was filed. The case was
committed to the Court of Sessions and from where it was received by
the trial Court for trial.
5. In support of its case, the prosecution has examined 16 witnesses.
Statement of the accused/appellant was also recorded under Section
313 of Cr.P.C. in which he denied the charge levelled against him and
pleaded innocence and false implication in the case. He examined two
witnesses in his defence.
6. After hearing the parties, the trial Court vide impugned judgment
convicted and sentenced the accused/appellant as mentioned in para-2
of this judgment.
7. Learned counsel for appellant would argue that the judgment passed
by the learned trial Court is bad-in-law and contrary to facts and
evidence of the case. He submits that the appellant has not committed
any offence and he has been falsely implicated due to previous
animosity. From the statement of the victim it is evident that there was
affair between the victim and the appellant; they have mobile talks also
and there was consensual relations between them, if any. There is no
independent witness of the occurrence. The victim was major girl of 22
years age and she willingly accompanied the appellant. No marks of
injury were found in the internal or external parts of the victim. In such a
way, learned trial court has held guilty to the appellant against
established principle of law and conviction and sentence based on
such evidence is not sustainable, therefore, impugned judgment is
liable to be set aside and appeal to be allowed.
8. Per contra, learned counsel appearing on behalf of the respondent-
State, while supporting the impugned judgment of conviction and order
of sentence submits that the judgment was passed by the trial Court
after proper appreciation of evidence available on record. The same is
well reasoned establishing the guilt of appellant beyond reasonable
doubt. Therefore, confirming the impugned judgment of conviction and
order of sentence, the appeal filed by the appellant may be dismissed.
9. Heard learned counsel for the parties and perused the record of trial
Court including the impugned judgment.
10. Appellant's conviction is primarily based upon the sole testimony of the
victim (PW-3). Settled legal position is that conviction can be based
upon the sole testimony of the victim provided it is reliable and is of
sterling quality. Therefore, the question for consideration is, whether in
view of the submissions and the grounds raised in appeal, the
appellant appeal deserves to be allowed?
11. It is settled position of law that in the case of rape, the accused can be
convicted only on the basis of solitary evidence of victim. In the case of
Krishna Kumar Malik vs. Stateof Haryana, reported in (2011) 7 SCC
130, Hon'ble Supreme Court has held as under:-
"No doubt, it is true that to hold an accused guilty for
commission of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires the
confidence and appears to be trustworthy, unblemished
and should be of sterling quality."
12. In the matter of Abbas Ahmed Choudhary v. State of Assam,
reported in (2010) 12 SCC 115, observing that a case of sexual assault
has to be proved beyond reasonable doubt as any other case and that
there is no presumption that a prosecutrix would always tell the entire
story truthfully, the Hon'ble Supreme Court held :
"Though the statement of prosecutrix must be given prime
consideration, at the same time, broad principle that the
prosecution has to prove its case beyond reasonable
doubt applies equally to a case of rape and there could be
no presumption that a prosecutrix would always tell the
entire story truthfully. In the instant case, not only the
testimony of the victim woman is highly disputed and
unreliable, her testimony has been thoroughly demolished
by the deposition of DW-1."
13. In the matter of Hem Raj vs. State of Haryana, reported in (2014) 2
SCC 395 the Hon'ble Supreme Court has held as under :-
"6. In a case involving charge of rape the evidence of the
prosecutrix is most vital. If it is found credible, if it inspires
total confidence, it can be relied upon even sans
corroboration. The court may, however, if it is hesitant to
place implicit reliance on it, look into other evidence to lend
assurance to it short of corroboration required in the case
of an accomplice. (See State of Maharashtra v.
Chandraprakash Kewalchand Jain.) Such weight is given
to the prosecutrix's evidence because her evidence is on a
par with the evidence of an injured witness which seldom
fails to inspire confidence. Having placed the prosecutrix's
evidence on such a high pedestal, it is the duty of the court
to scrutinize it carefully, because in a given case on that
lone evidence a man can be sentenced to life
imprisonment. The court must, therefore, with its rich
experience evaluate such evidence with care and
circumspection and only after its conscience is satisfied
about its creditworthiness rely upon it."
14. In case at hand, the victim (PW-4), a 22 years old girl, has stated in her
evidence that on 11.9.2021 at about 8-8:30 a.m. she had gone to
Mission Chowk from her village Piprid to purchase pen, copy pencil.
On the way, the appellant came on motorcycle and asked as to where
she had come. On repeatedly being asked by appellant, she sat on his
vehicle. Appellant took her to the house of someone situated in
Chaarpara, where the owner of said house was also present. After
some time, the owner of house went somewhere on motorcycle leaving
her and appellant alone in the house. Appellant removed her clothes
and thereafter committed sexual intercourse with her despite protest by
her. When appellant had gone to bring back his motorcycle, she
proceeded on foot towards Mission Chowk, appellant met her on the
way and dropped her at Mission Chowk on his motorcycle from where
she returned home on her bicycle, informed the factum of incident to
her parents on their return from field and then report was lodged. In
the cross-examination, the victim has deposed that she used to talk to
the appellant on mobile phone. She further admitted that appellant took
her from Mission Chowk on his motorcycle to Chaarpara. When
accused undressed her, she objected the same from hands. She did
not receive injury anywhere.
15. Dr. Neelam Dhruw (PW-3), who conducted medical examination of the
victim, has deposed that hymen of victim was torn at many places. Two
fingers can easily enter into her vagina, which means the victim was
habitual to sexual intercourse for a quite long time. The doctor further
deposed that upon examination, she did not notice any injury on the
person of victim nor she informed her about injury. She has opined
that there was evidence of recent sexual intercourse.
16. Dr. Ravindra Sidar (PW-2), who examined accused/appellant, though
found him capable to perform sex, but did not notice any scratch injury
on his person.
17. Rajendra Kumar Satsang (DW-1), a betel shop vendor, has deposed
that on the date of incident at about 9:00 a.m. the victim came and
parked her bicycle in his shop saying that she will come back in half an
hour. He does not know as to where she had gone. After about half-an
hour she returned and took her bicycle.
18. Hariram Jatwar (DW-2) has stated that there was love affair between
the appellant and the victim, they used to talk with each other on phone
and in this connection, a meeting was held in the house in which they
were advised not to talk with each other.
19. Thus, from the evidence discussed above, it is clear that the victim is a
major lady, aged about 22 years. On 11.9.2021 after parking her
bicycle in the betel shop of DW-1, the victim along with appellant went
on his motorcycle; appellant took her to a lonely house where he
committed sexual intercourse with her and thereafter appellant
dropped her at Mission Chowk. It is the evidence of the victim that she
had put up resistance but appellant committed sexual intercourse
despite the same. If that were really so, it is expected that some
injuries should have been found either on the victim or on the
appellant. But as already indicated above, no injuries of any kind were
found either on the victim or on the appellant. The victim did not tell in
her evidence as to why she did not resist or shout at the time of
incident. Though sole testimony of the victim is enough to base
conviction, if inspires confidence, but in this case, the evidence of
victim PW-3 lacks credibility and her evidence cannot be said to be of
sterling in nature, therefore, the story put forth by the victim appears to
be highly improbable and creates doubt in the mind of the Court as to
whether the accused/appellant had forcibly taken her and committed
rape or it was she who had accompanied him of her own free will and
was a consenting party for the sexual act committed by appellant.
Hence, in the light of the aforesaid discussion, It would indeed be
unsafe to convict appellant based on sole testimony of the victim,
which does not inspire confidence, and he is certainly entitled to the
benefit of doubt which is created by the very circumstances which are
referred above.
20. Accordingly, the appeal is allowed. Impugned judgment of conviction
and order of sentence is hereby set aside. Appellant is acquitted of the
charge under Section 376 (1) of IPC. The appellant is reported to be in
jail. He is directed to be released forthwith unless wanted in any other
case. However, keeping in view the provision of Section 437-A of the
Cr.P.C.(now Section 481 of the Bharatiya Nagarik Suraksha Sanhita,
2023), the accused-appellant is directed to furnish a personal bond for
a sum of Rs.25,000/- with two sureties in the like amount before the
court concerned which shall be effective for a period of six months
along with an undertaking that in the event of filing of Special Leave
Petition against the instant judgment or for grant of leave, the aforesaid
appellant, on receipt of notice thereof, shall appear before the
Supreme Court.
21. Registry is directed to transmit the trial Court record along with a copy
of this order to the trial Court concerned forthwith for necessary
information and compliance.
22. Certified copy as per rules.
Sd/-
(Ramesh Sinha)
Chief Justice
nisha
